Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

Congress was not even thinking of other landowners, because it is clueless when it comes to land use law.  Its only foray into land use has been to enforce equality norms in the federal housing laws, not to meddle with setback, traffic, and height restrictions.  But Congress, like anyone else, is responsible for the natural consequences of its actions, so its demotion of all landowners to second-class citizen status as compared to religious landowners looks like hostility to me (and thousands, if not millions, of homeowners across the country).  To call the destruction of the residential quality of a neighborhood "mild" seems a bit of an understatement, unless, of course, one believes that the Constitution has a built-in preference for religious observance over family home ownership.  I don't.

It is true, of course, that RLUIPA targets local government by directly regulating local law, but that simply goes to show its severe violation of federalism, a topic beyond the scope of this listserv.

Marci

Since the Court supposedly rejected the EC claim for the same reasons it rejected the FE claim, it appears that the new standard would uphold legislative disfavor that is âof a far milder kind.â  Whether it is oneâs view that RLUIPA was born from accommodationist concerns or a desire to impose pre-Smith law, it can hardly be said that Congress was acting out of hostility to other landowners.  If anyone was being targeted, it would be the municipal bodies that burden religious exercise.  It is certainly true that âthe nonreligious landowner gets nothingâ out of RLUIPA (other than sharing in the same protections for his/her own place of worship, of course) but even if this can be called disfavor, it has to be âmilderâ than that faced by theology students that were at least targeted in some fashion.

 

Roman

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